At a Law Council of Australia symposium on Indigenous imprisonment in 2015, lawyers and judges called for the abolition of mandatory sentences. They had more than one reason to do so.

Generally, Australian criminal laws set a maximum penalty, leaving it to judges to decide an appropriate sentence length. However, mandatory sentences are legislative interventions by the government that set a minimum, mandatory sentence for certain offences. Thus, they curtail a judge’s discretionary power to take into account a case’s particular circumstances that could reduce the sentence.

In many jurisdictions, mandatory sentencing is mainly limited to specific offences – such as murder or assault (of a police officer) and serious violence, rape, and child sex offences. These are horrific crimes that should be met with severe sentences. But mandatory sentencing creates a problematic justice system.

Indigenous over-representation

All Australian states and territories have mandatory sentences. Most introduced life imprisonment for murder after the death penalty’s abolition. But, over time, most jurisdictions adjusted the minimum penalty.

The Northern Territory introduced mandatory sentences for property offences in 1997. Some notorious incidents attracted national attention and criticism from the United Nations, which led to their repeal in 2001.

Western Australia introduced mandatory sentences in 1996 for a third conviction of home burglary. Despite its limited effectiveness, they remain in place today.

One might expect that any criminal justice system is fair and just. It must treat people appropriately and equally, according to the rule of law.

Mandatory sentencing, however, is a system that leads to disproportional and anomalous outcomes. This includes imprisonment for stealing a bottle of water, a can of beer, a packet of biscuits, or pencils. In the latter case, a 15-year old Aboriginal boy hanged himself while in prison.

A system can’t be fair or just if the marginalised and vulnerable are the first to be affected by it. Juveniles, persons with mental illness or cognitive impairment, and Indigenous peoples are often disproportionately impacted by mandatory sentencing.

In particular, (young) Indigenous people are disproportionately targeted by this legislation. Indigenous people are already grossly over-represented in Australia’s prison system. They make up 27% of the national prison population, while only accounting for 2.5% of the total Australian population.

Indigenous over-representation is the highest in WA and the NT, where mandatory sentences have their longest history. In WA and the NT, targeted offences are those that are typically committed by Indigenous people.

In 2002, 81% of juvenile offenders convicted under WA mandatory sentencing legislation were Indigenous – despite accounting for only 4% of the state’s population.

The Law Council of Australia is right in claiming that the abolition of mandatory sentences could help close the gap in Indigenous over-representation in the prison system.

Ineffective sentencing

It is also expected that the criminal justice system is as effective as possible. If mandatory sentences worked as a deterrent, crime would be reduced – but this is not always the case. There was an increase in property offences in the NT while mandatory sentencing was in place; these incidences dropped after the legislation was repealed.

However, there is some evidence that the threat of imprisonment in general might act as a small deterrent. But given the nature of targeted offences (often alcohol-fuelled and impulsive, and/or affecting uninformed members of remote communities, or committed by those who are mentally impaired), we wouldn’t give too much hope to the rational choice theory in this case.

Imprisoning for reasons of incapacitation might work in the short term. But this is a long-term failure. Addressing the underlying causes of criminal behaviour and rehabilitation is necessary in the long-term prevention of further offending.

The politicisation of crime and justice

Increasingly, Australian parliaments are intervening in sentencing practices. Recent examples are the introduction of mandatory sentences in NSW in response to alcohol and drug-fuelled violent offences, and the expansion of the “three strikes” home burglary laws in WA, both in 2014.

Politicians claim to respond to the public calling for harsher sentences, as the courts would be too lenient. Unfortunately, the public is largely misinformed about crime and justice matters. Most people think that crime rates are rising, although this is not the case.

Various pieces of research, in and outside Australia, have demonstrated that, if the public is well informed about the particular circumstances of the crime, and the sentences imposed, they agree to a large extent to the judges’ decisions.

The way forward, then, is to teach the public about what is really going on. This should happen beyond the unsubstantiated claims of talkback radio and sensationalist press, presenting a picture of “pampering offenders” and being “soft on crime”.

Leave it to the judges

This leads us to the most important principle objection against mandatory sentences: the strength of, and belief in, judicial discretion and independence. The Law Council of Australia noted that:

Judicial members are impartial decision makers that interpret the law, assess the evidence presented from both sides of the case before making a determination.

That is their role, and that is how it should be according to the rule of law. If we think there is something wrong with the training of judges in fulfilling that role, we should address that. We shouldn’t be siphoning their power to politicians who are, probably, even less trained and have other objectives than making justice work.

Therefore, let’s follow international jurisdictions that are moving away from mandatory sentences, due to a lack of evidence that they work in protecting the community, and leave it to the judges to judge.